A company's donation of air purifiers helped end the legal squabble between the Manhattan neighbors (Feb. 9); smoker Galila Huff has also agreed to use a smokeless ashtray, say Jonathan and Jenny Selbin, the husband-and-wife litigators. Jonathan Selbin, of Lieff Cabraser, evidently feels much put upon by press accounts linking his name with the epithet "bully"; one of Selbin's earlier letters to Huff observed, "As you may not be aware, we are both lawyers and both litigators, for whom the usual barriers to litigation are minimal." (Anemona Hartocollis, New York Times, Apr. 7; Greenfield, Apr. 6; WSJ letter to the editor, Apr. 8).
Recently in Tobacco Category
Not so fast, he says -- the Mississippi Bar didn't file a "certified copy" of his guilty plea. (Patsy R. Brumfield, "Dickie Scruggs files to dismiss attempt to have him disbarred", Northeast Mississippi Daily Journal, Apr. 1).
David Rossmiller has ten unanswered questions about loose ends in the Scruggs scandal (Mar. 24) which elicit responses in turn (and more unanswered questions) from NMC and Lotus at Folo (plus an NMC update). These latter bloggers, by the way, have shed their anonymity and stand revealed as Oxford, Miss. lawyer Tom Freeland (NMC) and retired lawyer Jan Goodrich, now of New Smyrna Beach, Fla. (Lotus), now also joined by Jane Tucker.
Is it okay for the University of Mississippi (Ole Miss) to take Scruggs's money? "It depends on what the felony is..." Chancellor Robert Khayat is quoted as saying (Folo/NMC, Apr. 1; more). Gulfport M.D. Bill Hemeter, in a letter to the editor printed in the Biloxi Sun-Herald (Mar. 19), is claiming prescience: "I sent Chancellor Khayat the book 'The Rule of Lawyers' by Walter Olson several years ago, with a warning not to take money from plaintiff attorneys." Earlier, when Scruggs pled guilty, another university official was heard from:
"My initial reaction is one of sadness," said Samuel Davis, dean of the University of Mississippi Law School, Scruggs' alma mater. "I've known and been friends with Dick and Diane Scruggs almost 50 years now going back to our days in Pascagoula, and I feel a great sense of compassion for him and his family. And that's just a very personal reaction. I haven't really thought about the implications for the legal community or the legal profession."
Davis, who also directs the Ole Miss Law Center, said not everybody who pleads guilty is guilty and that Scruggs might have had other reasons for the move. If that were the case, Davis said, the reasons likely were good ones.
And from Sid Salter of the Jackson Clarion-Ledger (Mar. 19): "In spite of their insistence that there were no ethical lapses in their behavior on the tobacco suit, [former attorney general Michael] Moore and Scruggs still owe the taxpayers of Mississippi an accounting of the lawyers' fees and expenses that accrued from that litigation."
I'm quoted in this morning's New York Sun on that correlation. (E.B. Solomont, "Post-Smoking Ban, City Gains 10 Million Lbs.", New York Sun, Mar. 27).
Big news day in the Scruggs scandals: a judge has turned down defense motions to throw out the charges and to suppress the evidence, a hearing on those motions has showcased the testimony of government informant Tim Balducci, and the government in responding to the motions has released extensive and often quite damning transcripts of the wiretap conversations among the principals. Folo as usual provides the most in-depth coverage, with posts on the judge's rulings here and here, on the hearing and Balducci's testimony here and in numerous preceding posts, and on the wiretap transcripts here and in numerous preceding posts. David Rossmiller is on the judge's ruling here, and on the hearing and transcripts here. More: Patsy Brumfield, NEMDJ, was at the courthouse.
Picking through the rich contents of the transcripts and Balducci's testimony is going to keep Scruggsians busy for a good long time. In the meanwhile, some odds and ends:
* Want to review all the major events of the central alleged bribery case, skillfully narrated in chronological sequence? Of course you do. Folo's NMC has it in six parts beginning here and ending here (follow links to find those in between).
* Mississippi legislature won't give AG Jim Hood authority to wiretap
his enemies suspected white-collar criminals. Gee, wonder why that might be? [WLBT via Lange] Plus: description of Hood as a Pez dispenser coughing out multi-million-dollar cases for his chums [Rossmiller]
* More Hood: prosecuting the accused judge-bribers "would be like prosecuting a relative" [Salter, Clarion-Ledger, Rossmiller, Folo]. Give back tainted money? "That's up to DAGA [Democratic Attorneys General Association]" [Lange]
* Small world, Mississippi: member of arbitration panel that awarded Scruggs huge fees was later hired by the tort potentate for legal work [Lange]
* Blogosphere has been a major source for breaking news on the scandal [LegalNewsLine]
* Liberal columnist Bill Minor recalls when a certain Sen. McCain let Dickie Scruggs and Mike Moore run their tobacco lobbying campaign out of his Hill office [NEMDJ via Folo; more at PBS "Frontline" and NY Times]
As you may not be aware, we are both lawyers and both litigators, for whom the usual barriers to litigation are minimal....
According to the New York Times, that's the opening line of the letter sent by husband-and-wife attorneys Jonathan Selbin and Jenny Selbin to neighbor Galila Huff, curtly warning that she'd better keep cigarette smoke from escaping her apartment or they'd see her in court. (Josh Barbanel, "Neighbor vs. Neighbor", Feb. 17). Earlier coverage here. More: Bainbridge.
Galila Huff, who says she regrets her chain-smoking habit, has been hauled to court and asked to pay punitive damages: "Her neighbors, Jonathan Selbin, a class-action lawyer who has honed his skills suing major corporations, and his wife, Jenny Selbin, also a lawyer, are irate over the cigarette smoke that they say seeps from Ms. Huff’s apartment into the common hallway of their building, the elegant Beaux-Arts Ansonia, on Broadway between 73rd and 74th Streets." (Anemona Hartocollis, New York Times, Feb. 9). More: Bainbridge.
Thus argues a lawsuit filed by James Bogden against four restaurants in Alexandria, Va., which "seeks to require the restaurants to become smoke-free, arguing that they must accommodate Bogden's disability, coronary artery disease, and eliminate secondhand smoke so he can eat at them. Each of the restaurants allows smoking in designated areas." (Jerry Markon, "Man With Heart Condition Wants Smoke-Free Eateries", Washington Post, Jan. 31).
Yesterday's guilty plea by Booneville, Miss. attorney Joseph ("Joey") Langston in the attempted improper influencing of a Mississippi state judge would be major news even if it had nothing to do with the state's most famous attorney, Richard ("Dickie") Scruggs. That's because Langston and his Langston Law Firm have themselves for years been important players on the national mass tort scene. The firm's own website, along with search engines, can furnish some details:
- Per the firm's website, it has represented thousands of persons claiming injury from pharmaceuticals, including fen-phen (Pondimin/Redux), Baycol, Rezulin, Lotronex, Propulsid and Vioxx. It was heavily involved in the actions against Bausch & Lomb over ReNu contact lens solution (and its former #2 Timothy Balducci, the first to plead in the widening round of corruption scandals, won appointment to the steering committee of that litigation.)
- The Langston firm has represented thousands of asbestos claimants and says it has "significant" experience in the emerging field of manganese welding-rod litigation, also a specialty of the Scruggs law firm. The website AsbestosCrisis.com includes the Langston law firm in its listing of about thirty law firms deemed notable players on the plaintiff's side of asbestos litigation ("Tiny firm founded by Joe Ray Langston powerhouse in Mississippi with 50-year roots in state political circles.")
- Langston appeared to play a sensitive insider role for Scruggs in the largest and most lucrative legal settlement in history, the tobacco-Medicaid deal between state attorneys general and cigarette companies, the ethical squalor of which was a central topic of my 2003 book The Rule of Lawyers; as mentioned previously, when Dickie Scruggs routed mysterious and extremely large tobacco payments to P.L. Blake, he used attorney Langston as intermediary.
- Langston has repeatedly taken a high profile in the same fields of litigation as has Scruggs, including not only suits over asbestos, tobacco and welding rods but also two of Scruggs's "signature" campaigns, those against HMOs/managed care companies and not-for-profit hospitals.
- Though the firm is better known for its plaintiff's-side work, the Langston firm's "national practice" page asserts: "The Langston Law Firm virtually defined the role of 'Resolution Counsel' in the modern era of jurisprudence. Prominent domestic and foreign companies facing massive litigation have turned to The Langston Law Firm to create winning strategies to save their companies."
Incidentally, and because it may confuse those researching the matter on the web, it should be noted that there is a second prominent Mississippi plaintiff's lawyer who bears the same surname but has not been involved in the recent Scruggs scandals, that being Joey's brother Shane Langston, formerly of Jackson-based Langston, Sweet & Freese. Shane Langston, whose name turned up often in connection with the "hot spots" of pharmaceutical litigation of Southwest Mississippi, has more recently been in the news over client complaints regarding alleged mishandling of expenses related to the Kentucky fen-phen litigation scandals. [Family relationship between the two confirmed 1/16 on the strength of emails from several readers.] (& welcome WSJ Law Blog readers)
[First of a two-part post. The second part is here.]
Two noteworthy stories in the Mississippi press: Anita Lee of the Biloxi Sun-Herald takes a look at "Dickie Scruggs' $50 million man: What did P.L. Blake do to earn all that money?" (Dec. 16; some earlier Blake discussion).
Blake will earn $50 million, court records show, for clipping newspaper articles and alerting Scruggs to maneuvering in political "cloakrooms," as Scruggs put it, from Mississippi to Washington. ...
Accounts of how Blake earned the money are vague and contradictory.
Even more surprising, Blake and Scruggs were unable to say whether they sealed their business agreement with a handshake or in writing.
A few points brought out in the article: "Scruggs said Tom Anderson, who then worked in Lott's office, referred Blake to Scruggs." Attorney General Mike Moore, nominally Scruggs's public client after hiring him to advance the state's interests in the tobacco litigation, was aware that Blake was being paid, though he professes surprise at how much. And Scruggs routed the $10 million in initial tobacco payments to Blake through attorney Joey Langston as intermediary. (more discussion)
The assignment of steady continuing payments to Blake over the life of the tobacco settlement distinctly resembles a gesture toward diverting a share of the tobacco proceeds (a contingency share, as it were) to reward and incentivize Blake, or perhaps Blake-and-others-too, to work for the success of the deal. [corrected 12:24 on proofreading after posting; I mistakenly used a wrong surname in place of "Blake" here and below.]
If reporters or others at some point succeed in reaching and questioning Blake, who is said to have moved to Alabama, presumably one of the questions worth asking him will be: is he really the final recipient and ultimate beneficiary of all that impressive cash flow -- declaring it on his income tax, having all the funds available for his personal use, and so forth -- or does he pass/has he passed some of the money along to anyone else? If he keeps it all, it's no wonder the questions will keep re-echoing about whether his services could really have been worth that much. If it turns out he is passing/has passed some of it along to another actor or actors, why would things have been arranged that way? One possibility -- though not the only one, of course -- is that such further beneficiary or beneficiaries might not wish to be known publicly as holding a share in the payouts of the great tobacco project. (Update: a Monday article by Anita Lee in the Sun-Herald ("Blake's information 'right-on'", Dec. 17) quotes Moore saying that Blake seemed to have accurate intelligence in what was going on in tobacco-industry and Republican circles.)
The other noteworthy story is by Jerry Mitchell in the Jackson Clarion-Ledger ("Feds probe Hinds case under scrutiny", Dec. 16). It confirms that one of the "bodies buried" that Balducci told federal agents about relates to the Luckey/Wilson asbestos fee matter, which was eventually split into two legal proceedings, both hard-fought, with Luckey faring better than Wilson in the legal battle against Scruggs. In addition, the search warrant for the Langston law firm sought documents relating to the Wilson case "as well as documents regarding payments to Jackson lawyer Ed Peters, who played no known role in the case. In 2001, Peters retired as Hinds County district attorney."
An active comment thread at Lotus/folo includes additional information about Peters, among other topics, and also passes along details about some of non-wannabe Timothy Balducci's past involvements in high-stakes litigation, from his own promotional material. A sampling:
In 2006, Tim was Lead Counsel in Mississippi’s successful prosecution of securities fraud claims against Citigroup in Federal District Court in New York. His success in representing the state in so many complex litigations was a major factor which contributed to his selection by the Commonwealth of Kentucky to prosecute an action on its behalf to recover over $1 Billion dollars in government funds from a major chemical manufacturer. Also, the United States District Court in Charleston, South Carolina, selected Tim to serve on the National Leadership Committee for the ReNu contact lens solution litigation against Bausch & Lomb.
Notes a commenter: "it’s amazing how much lawyering these tiny law firms seem to get done. It’s just as amazing that he gets it done with *no reported decisions.* Pretty strange."
A report in today's New York Times advances the ball on a number of fronts:
- Per an unidentified official, "federal prosecutors have asked the Justice Department’s Public Integrity Section to examine whether Mr. Scruggs has engaged in multiple bribery attempts of local judges." DoJ is said to have sent lawyers to Mississippi to check out leads along these lines, and is also said to be interested in possible misconduct by Scruggs in the Alwyn Luckey fee dispute.
- The Times interviews Clarksdale, Miss. attorney Charles M. Merkel Jr., who spent more than a decade in court fighting Scruggs in the Luckey dispute:
“It’s scorched earth with Dickie Scruggs,” says Mr. Merkel, sitting in a wood-paneled office featuring duck-hunting memorabilia and two framed checks representing about $17 million in payments that Mr. Scruggs had to disgorge to Mr. Merkel’s client -- a lawyer named Alwyn Luckey who argued that Mr. Scruggs shortchanged him for work he performed on asbestos cases that made Mr. Scruggs rich.
Mr. Merkel and prosecutors say that the Luckey case foreshadowed some of Mr. Scruggs’ woes in the current bribery case. “As far as whether he’s guilty, I can’t say,” Mr. Merkel concedes. “But I’m not surprised, because he’s willing to use any means to an end. And it irks the hell out of me when Scruggs skates on the edge and makes the profession look bad.”
- Keker, as predicted, is labeling Timothy Balducci a "wannabe" and says, of him and Scruggs: "I don’t think they’re close at all." Merkel, for one, isn't buying that: “He’s a lot closer to Scruggs than Scruggs would like to portray now,” Mr. Merkel says. “Balducci made part of the closing arguments in one of my cases, and they sat at the same table. When I was negotiating with them, it was generally with Balducci.”
- The Times also picks up on Scruggs's liberal dispensing of resources to sway Mississippi political influence-holders during the tobacco caper:
In his deposition with Mr. Merkel in 2004, he discussed some $10 million in payments he made to P. L. Blake, a onetime college football star in Mississippi. After running into financial troubles, Mr. Blake became a political consultant for Mr. Scruggs, helping his boss navigate the back rooms of state politics and tobacco litigation.
In the deposition, where he was represented by Mr. Balducci, Mr. Scruggs praised Mr. Blake for keeping “his ear to the ground politically in this state and in the South generally, and he has been extremely helpful in keeping me apprised of that type activity.” Mr. Blake could not be reached for comment.
When Mr. Merkel further pressed Mr. Scruggs about Mr. Blake’s services, Mr. Scruggs elaborated: “He has numerous connections -- in terms -- when I say connections, I don’t mean that in a sinister way, I mean he just has a lot -- he knows an awful lot of people in the political realm. And he -- depending on the stage of tobacco litigation proceedings was keeping his ear to the ground, prying, checking. I mean, I never asked who or what or all that.”
David Rossmiller takes note of a letter by Balducci dated August 1 over a regulatory matter which in its cocksure and sarcastic tone suggests that Balducci had not yet been confronted and "flipped" by federal investigators as of that date. This morning he adds a document and link roundup.
The Jackson Clarion-Ledger quotes Jackson attorney Dennis Sweet, who partnered with Scruggs on slavery reparations, as saying he "had a hard time believing that Dickie would involve his son in anything like this," a comment that perhaps is open to close reading.
At Y'AllPolitics, two commenters discuss how conspiracy investigations logically develop over their life cycle. David Sanders notes that when the timing is up to them, federal investigators prefer not to uncover operations and reveal informants until they are satisfied they've caught all the targets in their net, which raises the question of whether they had developed what they considered to be the best evidence they were going to get, or whether some development forced their hand into closing the net before that point. "LawDoctor1960" observes that the indictees will soon get a look at the prosecution's case, which if damning could induce one or more to join Balducci in "flipping" with resulting further revelations and perhaps further indictments.
The WSJ law blog has some answers to the question put the other day: Where is Mr. Keker?
Folo wonders: does the Scruggs firm (as opposed to Scruggs Katrina) really not have a website, and if so, isn't that exceedingly strange? Don't they want to encourage potential clients to approach them?
Breaking Monday afternoon: FBI agents search offices of another leading Mississippi plaintiff's attorney, Joey Langston, who has been representing Scruggs in his indictment, and has had many other past dealings with him.
Make way for another creative application of the Americans with Disabilities Act: the office of Texas attorney general Greg Abbott says it could violate the ADA for the Texas Lottery Commission to permit sale of its lottery tickets in stores that allow smoking. "Lewisville resident Billy Williams complained to the commission in 2006 that he had an asthma attack after buying a ticket at a smoky store." Abbott's office found that the ADA requires that disabled residents be provided with "'meaningful access' to state services", in this case consisting of lottery tickets, and that smoking-allowed policies at participating retailers could impair such access. ("Smoking questioned for stores that sell lottery tickets", AP/Houston Chronicle, Nov. 9).
Major tobacco companies have gotten one of those letters from the Federal Ministry of Finance in Lagos, Nigeria, proposing a gigantic and unlikely transfer of funds. Problem is, this time it's authentic. Hans Bader has details (Nov. 7). Similar, earlier suits by foreign governments: Nov. 16, 2000 (Saudi Arabia); Feb. 1-3, 2002 (others).
Some updates to earlier stories we've covered:
- Spyware maker Zango, which embarked on a strategy of suing all the anti-spyware vendors that were calling its products spyware, has dropped its lawsuit against PC Tools, the maker of Spyware Doctor. (We covered the filing of the lawsuit on May 23.) Presumably it chose to drop the suit because it just lost a similar one against Kapersky Lab, with a federal court ruling that antispyware companies' decisions of this sort are protected from suit.
Eric Goldman has the details, including links to all the relevant decisions.
- We reported on August 21st on the "crackpot" libel suit against blogger PZ Myers for an unflattering book review. Stuart Pivar, who filed the suit to great derision in the blogosphere, apparently dropped the suit a week later. (Even if the suit had legal merit, it was filed in the wrong court, so dismissal was just bowing to the inevitable; in theory, Pivar could refile in the appropriate court, but after the way constitutional law professor Peter Irons dissected the complaint, I think Myers ought to feel safe.) Free hint to readers: defamation lawsuits are almost always a bad idea. All they do is provide publicity to the very claims one is trying to suppress. Defamation lawsuits against prominent bloggers are even less sensible.
- Two years ago, the Illinois Supreme Court put an end to one of the more fraudulent "consumer fraud" lawsuits ever filed, a $10 billion lawsuit against Philip Morris for marketing "light" cigarettes in accordance with federal guidelines. But even though the state's highest court ordered the case to be dismissed, Madison County repeat offender Steve Tillery went back to a local court run by notorious Judge Nicholas Byron and tried to reopen the lawsuit. Finally, last month the Illinois Supreme Court definitively slapped down Tillery, telling Byron to dismiss the case.
(Overlawyered's sister site Point of Law has been covering this case.)
The piece's subtitle: "How greed, hubris and high-stakes lobbying laid waste to the $246 billion tobacco settlement". Without necessarily endorsing every point in the piece -- this is the ABA Journal, after all -- it's still striking how what was once a lonely critique of the settlement has now been accepted as history's verdict:
The only big winners in the litigation appear to be the tobacco companies, the state treasurers and the lawyers who represented both sides....
...$15 billion has been awarded to the private lawyers hired by the state attorneys general. That’s the largest attorney fee award in history. More than $100 million -- Big Tobacco won’t say precisely how much -- has been paid to the lawyers defending the companies.
“The tobacco litigation was a failure of historic proportions,” says Linda Eads, a law professor at Southern Methodist University’s Dedman School of Law in Dallas. “A complete and utter failure in every sense.”
(Mark Curriden, "Up in Smoke", ABA Journal, March).
"Accusing tobacco companies of preying on black people, a Miami attorney is seeking $1 billion in damages on behalf of a Coral Springs, Fla., woman whose mother and grandmother both died of smoking-related health problems." Reporter Forrest Norman of the Daily Business Review, the south Florida legal paper, quotes me expressing skeptical opinions about the suit. In Florida's earlier Engle tobacco litigation, plaintiff's lawyer Stanley Rosenblatt came in for sharp criticism at the appeals level for the way he demagogued the racial angle; I covered the case here, here and here. This week's case was brought by solo practitioner J.B. Harris, who said of the tobacco-company defendants, "If I could, I'd try to have them charged with genocide." ("Suit Accuses Tobacco Firms of Targeting Black Consumers, Seeks $1 Billion in Damages", Jun. 6).
Bowing to pressure from 32 state attorneys general to curb the depiction of smoking in movies, the Moving Picture Association of America has just conceded "the basic principle that public-health lobbyists and politicians should have a big role in deciding what people will see, instead of letting the industry merely cater to its audience." But state governments "have no more business determining what appears on movie screens than they do in deciding what goes into Judy Blume's next novel. ...The MPAA's response validates the politicians in their intrusions, and beckons them to find new ways to regulate art and other matters that are supposed to be exempt from their control." (Steve Chapman, syndicated/Orlando Sentinel, May 21). More: Michael Siegel, May 11, May 16, May 17; Jacob Sullum, May 16. Earlier: Sept. 1, 2003.
If there's a backlash underway against paternalism, you'd never know it from the crowded agenda of "nanny bills" under consideration in Sacramento, which include a ban on smoking in cars with kids present and proposed restrictions on keeping unspayed cats or dogs as pets. (Nancy Vogel, "Big mother is watching with new laws in mind", Los Angeles Times, Mar. 8).
P.S. Regarding an Illinois version of the cigarettes-in-cars idea, Jacob Sullum has the good headline: "I Do Miss Mom, but At Least the Car is Smoke Free".
Some initial thoughts on Philip Morris v. Williams from Jim Copland at Point of Law. By a 5-4 vote, in an opinion by Justice Breyer, the Court held that a punitive damage award cannot be based in part or whole on a jury's desire to punish harms committed against non-parties to the litigation, although (a fine distinction, if indeed a tenable one) such harms may be taken into account in determining the defendant's degree of reprehensibility.
More: Ted comments and rounds up links, also at PoL. Roger Parloff (Feb. 20) calls the majority's distinction "narrow" and "confusing". And Eric Turkewitz offers one view from the plaintiff's side ("hair-splitting"; majority's "Clintonian parsing...was too much for four of the justices").